Maull v. Hays , 12 Ala. 499 ( 1847 )

ORMOND, J.

The loan to Mrs. Maull, was in legal estimation a loan to the husband, and the slave having come to his possession it will be in effect the same as if the loan had been made directly to him.

The question then is, whether, as the slave remained in the possession of the husband more than three years, without demand, or pursuit by due course of law, on the part of the lender, she is liable for the payment of his debts, after she has been returned to the owner, no lien having been acquired by the creditor, whilst the slave was in the possession of the debtor. This depends on the proper construction of the statute of frauds. That portion of the 2d section applicable to the case, is to the following effect: “ And in like manner, where any loan of goods, and chattels, shall be pretended to have been made, to any person, with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued, by due course of law, on the part of the pretended lender, the same shall be taken, as to the creditors, and purchasers, of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property, is with the possession; unless such loan, reservation, or limitation of use, or property were declared by will, or by deed in writing, proved and recorded as aforesaid.” [Clay’s Dig. 254, § 2.]

The statute does not confer the title on the borrower, after the lapse of three years, without demand made, &c., but subjects the property in his hands to the payment of his debts. It is then his possession, after the lapse of three years, on which the right of the creditor attaches, and if that is parted with, before the creditor acquires a lien on the property, he can no more follow it into the hands of the owner, than he could pursue property which the debtor had sold previous to his acquiring a right to levy an execution. This result must follow, because the resumption of possession by the owner, divests the right of the loanee, and invests him with the possession.

It is a necessary corrollary from these propositions, that the suing out execution against one, who has loaned property in possession, before the three years have elapsed, creates no lien upon it, because it is not subject to levy and sale for his debts. The first execution therefore, gave the creditor no lien on the slave, and the second could confer no right, because, before it issued, the owner had regained the possession, and the right to sell the slave, as the property of the defendant, being dependent on the possession, was lost when that was parted with. These principles are in effect decided in Boyd & Swepson v. Steinbach, 5 Munf. 305; see also, Myers v. Peck, 2 Ala. 648, and the cases cited.

Whether the creditor would have a right to pursue the property, where the debt had been created during the continuance of the loan, and the possession resumed by the owner after the expiration of three years, from the time the loan was made, is a question we need not consider, as the debt in this case existed anterior to the loan.

The subsequent possession of the .defendant, did not subject the property to sale for his debts, unless the conveyance by Holmes, to the son of the defendant, was merely colora-ble, not intended to vest the property in the son, but by the means of a pretended conveyance to the son, to give the defendant the right to use, and control the property. If the gift to the son was bona fide, he being an infant, residing with his father, the possession will be referred to the title of the son. [Sewall v. Gliddon, 2 Ala. 52.]

Let the judgment be reversed, and the cause remanded.